• Von Kliem

Defending Reasonable Force

Police use of force is evaluated under the "totality of the circumstances." Some courts emphasize the "Graham" factors, some emphasize the "Kingsley" factors, and some emphasize the "Larsen" factors. The Supreme Court emphasizes all of the factors and reminds us that, in the end, all that matters is whether the officer's actions were reasonable.

As vague as it is, the 4th Amendment's "reasonableness" standard reflects the operational reality that threat assessments and responses are educated judgments. "Tense, uncertain, and rapidly evolving circumstances" never allow time for perfect responses - and rarely allow time for optimal responses. They require reasonable responses, which means reasonable people might disagree, and the law allows for that.

Admittedly, "be reasonable" provides little guidance to officers and leaves communities and courts without clear standards to judge police. It's only through court opinions - informed by use of force and human performance experts - that the boundaries of “reasonableness” start to crystallize. Still, no two cases are exactly alike, and a variety of reasonable options usually exist.

Preferring flexibility and officer discretion, courts have rejected rigid use of force guidelines and instead have chosen to "slosh through the fact-bound morass" of "reasonableness." Nonetheless, reform proponents are attempting to bypass the federal “reasonableness” standard by requiring (in policy and state law) that force be used only when “necessary,” “proportional,” "least," and "the last resort." Even the roundly rejected “minimum force necessary” and "preclusion" language is making a return.

The proposed use of force requirements (part of the larger police-reform social experiment) is intended to reduce police use of force and improve "accountability." In calling these efforts a "social experiment," I am merely being descriptive. Being new, these proposed requirements do not benefit from court opinions to shape their meaning or the expectations of agencies, courts, and communities. As most social experiments go, the academics, activists, and civic leaders calling for change have no personal stake in the outcome. Unlike the police and the communities, reform activists are unlikely to suffer any consequences should the experiment fail.

Notably, the new "elevated" use of force standards are not intended to reduce the violence, resistance, or criminality of the suspects that prompt the use of force. They are also not intended to eliminate unreasonable force. Instead, they are expressly designed to “raise the bar” so that even the most ethical officers can be "held accountable" for otherwise lawful, effective, and historically reasonable force.

Agencies and officers willing to give the reform proposals an honest effort are still going to have trouble predicting what the "least amount," "necessary," or "minimum" force should be in any particular case. As is often observed, that is like requiring firefighters to put out a fire using only the minimum amount of water; or telling a football player to tackle using the minimum amount of force.

It's also worth asking who decides these questions. Will "necessity," "proportionality," and "preclusion" requirements be viewed through the "reasonable officer" lens? Who decides when "de-escalation" is feasible? Who decides whether the officer should have just let the suspect go rather than using force? Will the officer's judgment be subordinate to community oversight committees, politicians, activists, and "progressive" prosecutors? We have already seen examples where this is the case.

The intentionally broad "reasonableness" requirement allows for the imperfection of officers making use of force decisions while experiencing tactical uncertainty, perception distortions, and personal threats. Asking officers to predict what is the "minimum," "necessary," or "proportional" force required is a legal impossibility and unreasonable.

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